肯尼迪大法官退休：影响最高法院30年的摇摆票In Influence if Not in Title, This Has Been the Kennedy Court

来源：纽约时报 2018-06-28 09:04

WASHINGTON — Justice Anthony M. Kennedy has served for more than 30 years under two chief justices: William H. Rehnquist and John G. Roberts Jr. Courts are by tradition named for the chief justice. Since 2005, it has been the Roberts court.

But if influence were the deciding factor, it would be more accurate to speak of the period since 1988 as the Kennedy court.

但如果影响力是决定性因素，1988年以来，将最高法院称为肯尼迪法院更为准确。

Justice Kennedy has occupied a place at the court’s ideological center for his entire tenure, though he shared the middle ground with Justice Sandra Day O’Connor for most of his first two decades. On her retirement in 2006, his vote became the undisputed crucial one in most of the court’s closely divided cases.

在整个任期内，肯尼迪大法官身居最高法院的意识形态中心点，尽管他在任期前20年的大部分时间里同桑德拉·戴·奥康纳(Sandra Day O’Connor)一起站在中间派立场。待到2006年奥康纳退休，他的这一票就无可争议地成了最高法院大多数势均力敌的案件中的关键。

There have been about 51 decisions in which Justice Kennedy joined a liberal majority in a closely divided case, while Chief Justice Roberts dissented. All of those precedents could be in jeopardy, said Lee Epstein, a law professor and political scientist at Washington University in St. Louis.

To be sure, Justice Kennedy often voted with the court’s conservatives. He wrote the majority opinion in Citizens United, which allowed unlimited campaign spending by corporations and unions, and he joined the majority in Bush v. Gore, which handed the 2000 presidential election to George W. Bush. Justice Kennedy also voted with the court’s conservatives in cases on the Second Amendment and voting rights.

Not infrequently, though, he joined the court’s liberal wing in important cases on contested social issues, including liberal decisions on gay rights, abortion, affirmative action and the death penalty. A court containing two Trump appointees could chip away at those rulings.

Mr. Trump has vowed, for instance, to appoint justices committed to overruling Roe v. Wade, the 1973 decision that established a constitutional right to abortion. That would not happen overnight if another Trump appointee joined the court, but aggressive restrictions on access to abortion would very likely be sustained.

The vote count in the court’s most recent abortion case is telling. In 2016, when the court was short-handed after the death of Justice Antonin Scalia, Justice Kennedy joined the court’s four-member liberal wing to strike down a restrictive Texas abortion law. That ruling would almost certainly have come out differently from a court without Justice Kennedy and with two Trump appointees.

The right to same-sex marriage seems more secure, and Mr. Trump has said he considers the issue settled. But a court including a second Trump appointee would be quite unlikely to expand gay rights and would instead be receptive to arguments from religious groups that object to same-sex marriage.

According to a court spokeswoman, Justice Kennedy told his colleagues on Wednesday of his decision to step down, effective July 31.

据最高法院一位发言人称，肯尼迪大法官于周三告知同事自己决定退休，于7月31日生效。

“It has been the greatest honor and privilege to serve our nation in the federal judiciary for 43 years, 30 of those years on the Supreme Court,” Justice Kennedy said in a statement.

肯尼迪大法官在一份声明中表示：“在联邦司法系统为国家服务43年，其中30年在最高法院任职，这是我的最高荣誉与荣幸。”

In a letter to Mr. Trump, Justice Kennedy, 81, expressed “profound gratitude for having had the privilege to seek in each case how best to know, interpret and defend the Constitution and the laws that must always conform to its mandates and promises.”

That language — earnest, flowery, a little mystical — was characteristic of his judicial writing, which was not to everyone’s taste.

这种热情、华丽、有点神秘感的语言，是他司法写作的特点，不见得符合所有人的口味。

Justice Kennedy’s opinions were studded with vague and soaring language.

肯尼迪大法官的意见书中往往充斥着模糊和崇高的语言。

“At the heart of liberty,” he said in a 1992 decision upholding the constitutional right to abortion, “is the right to define one’s own concept of existence, of meaning, of the universe and of the mystery of human life.”

“在自由的核心，”他在1992年维护堕胎宪法权利的裁决中说道，“是定义自身存在的概念、意义、宇宙与人类生命奥秘的权利。”

Phrases like that infuriated his critics, notably Justice Scalia. In a 2003 dissent, Justice Scalia mocked “its famed sweet-mystery-of-life passage,” calling it “the passage that ate the rule of law.”

Justice Kennedy’s final opinions on the court had a valedictory quality. He wrote an inconclusive decision in a clash between a baker and a gay couple, and he joined a pair of decisions ducking the question of whether the Constitution prohibits partisan gerrymandering.

Justice Kennedy valued civility and dignity, and the Trump years seemed to take a toll. In Tuesday’s decision upholding Mr. Trump’s travel ban, he seemed to chide the president for incivility even as he said the courts could do nothing to force him to behave with the decorum Justice Kennedy prized.

“There are numerous instances in which the statements and actions of government officials are not subject to judicial scrutiny or intervention,” he wrote. “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”

“有很多例子说明政府官员的言论和行为不受司法审查或干预，”他写道。“这并不意味着这些官员可以自由地无视宪法及其主张和保护的权利。”

“The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the judiciary can correct or even comment upon what those officials say or do,” he wrote. “Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”

A new Trump appointee would almost certainly vote with the court’s most conservative members, thrusting Chief Justice Roberts into the court’s ideological center. The chief justice has drifted slightly to the left in recent years, but aside from two votes sustaining President Barack Obama’s health care law, it is hard to point to a major decision in which he disappointed political conservatives.

“Should Roberts become the median, the court could move well to the right, taking its place as the most conservative court in modern history,” Professor Epstein said.

“如果罗伯茨是中位数，那么法院可能已经彻底偏右了，成为了现代历史上最为保守的法院，”爱泼斯坦说道。

In the Supreme Court term that just concluded, Chief Justice Roberts already seemed to be moving to the court’s center, voting with the majority in divided cases more often than any other justice. The term yielded an extraordinary run of conservative rulings, including blockbusters upholding Mr. Trump’s travel ban and dealing a sharp blow to public unions.

“This term gave us a preview of what the Supreme Court would be like if Chief Justice Roberts were to become the swing vote,” said Leah Litman, a law professor at the University of California, Irvine. “Progressives will lose, and they will lose a lot, except in a few criminal cases.”